Wednesday, March 30, 2016

Unoriginal Sin: Part III

Yeah, I thought it was going to be a two-parter too. Part I starts here if you are just seeing this.

In my previous post, I wrote that it was Robert Bork rather than Antonin Scalia who had “put Originalism on the map.” To clarify, I did not mean to imply that Bork had originated Originalism either – only that he put it in the public eye and made it a political football in modern times.(1) After all, I had acknowledged that the founders had both anticipated and warned against the temptation Originalism and it did not take until modern times for anyone to take the bait.

Take Justice Robert Taney’s infamous Dred Scott decision in which he said that African Americans were “so far inferior that they had no rights which the white man was bound to respect,” and thus, “the negro might justly and lawfully be reduced to slavery for his benefit.” To Taney, blacks were never considered citizens by the founders and therefore could not sue in court. That was the basis of his decision - that we were bound by the prejudices he projected on the founders.

Abraham Lincoln disagreed. Echoing one dissenting opinion, he pointed out that free blacks could vote in many states when the Constitution was ratified. He argued that blacks’ participation in the Constitution’s ratification meant that they were also entitled to its protection. As Lincoln said, "It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government." On the contrary, Lincoln believed that the status of blacks had drastically deteriorated.(2)

To Lincoln's ratification argument I could add any number of anti-slavery quotes from our founders – including ones that affirm the humanity of blacks in no uncertain terms. Benjamin Franklin reasoned that freeing slaves was not enough: White society had a duty to help freedmen get acclimated and established as well – including, “To instruct, to advise, to qualify those, who have been restored to freedom, for the exercise and enjoyment of civil liberty.” In other words, for the practice of citizenship.

While there certainly was plenty of racist legislation as well, it varied by place and there was frequent change.(3) The point being is that there was never any national consensus. The issue was always in dispute. Justice Taney had made an Originalist argument. And, like most Originalists, he had grounded it on faulty, cherry-picked history - on what he imagined was original intent:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
Note the phrase “unfortunate race.” The bogus sympathy is significant. It sounds oddly modern. It reeks of the Bell Curve’s “We’re not racists, but we have to follow our data.” But in both cases, the data was junk. Pat Buchanan was far more blunt in his defense of apartheid South Africa. In his syndicated column, he mocked the concept that there was anything wrong with white supremacy. "Where did we get that idea? The Founding Fathers did not believe this.” By contrast, Justice Taney almost seems to claim he is more evolved - or at least that his times were: "It is difficult at this day to realize."

Some take Taney's tone at face value because he had freed his slaves when he was younger, but his heart had hardened since. Ultimately, his tone was a result of gentility, not sympathy. Of course, this made his argument all the more dishonest because his calcifying attitudes mirrored much of the country's.

But putting Taney's comparatively soft tone and enlightened affectation aside, he was clearly making an Originalist argument: The founders have spoken so our hands are tied. As Sol Wachtler wrote in the Touro Law Review, Taney sounds like he is addressing the Federalist Society. Indeed, Taney does:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Towards the end of his decision, Taney hit all the previous beats - the phony sympathy, suggesting public attitudes had evolved, and claiming the court had no legal remedy - all in one run-on sentence:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. 
Thus we must assume the worst of the founders and rule accordingly. "Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day." Seriously, Rodger Taney wrote just like Robert Bork.

Of course, Bork thought Taney's decision violated Origialism because - drum roll, please - the Constitution does not explicitly grant any right to own slaves. This argument was so absurd and dishonest that even other Originalists had balked at it. Yes, the Constitution certainly skirted the word slavery, but it recognized that institution in a range of ways from the three fifths compromise to the fugitive slave clause. The South insisted on special protections for slavery and refused to ratify the Constitution without them. Preserving slavery was their precondition for participating in every national endeavor from the Declaration of Independence on forward. And, after the Civil War, white supremacy took its place.

Moreover, in the same book that Bork made this argument, he wrote that original intent can be divined from "secondary materials, such as debates at the conventions, public discussions, newspaper articles dictionaries in use at the time, and the like." Those very documents would confirm that the founding fathers were talking about slavery. Of course, as I wrote before, Bork often ignored these materials. Most Originalists do: It's judicial fundamentalism. Bork's dishonesty mirrored Taney's in every way.

I wrote a lot about Robert Bork in my book because his Originalism encapsulates conservative thought rather aptly. Conservatives are authoritarian "traditionalists" who are militantly ignorant of history. When they insist we must submit to the dead hand of the past, they mean we must submit to whatever their elastic, reactionary imaginations can manufacture. As I wrote in the first chapter:
The Tea Party is simply Originalism applied to economics. Hence the tricorn hats they sport at protests. Indeed, Originalism is their entire motif. And Robert Bork’s martyrdom at the hands of the “liberal elite” fits the Tea Party’s victim script perfectly. It is symmetry in symbolism.
It's all there: the weaselly tyranny of "small government" advocates, the persecution fantasy of the privileged, the fear of liberalizing attitudes - real or imagined, you name it. As George Orwell had warned in his famous dystopian novel 1984, “He who controls the past, controls the future.” That's their game plan. For conservatives, history is a creature of convenience. The accuracy of their past is not as important as your loyalty and obedience. It's mythology management. 

Thomas Jefferson thought each generation must get free of the dead hand of the past. Thus, original intent says, "Forget original intent." One good reason for that is the dead hand of the past is frequently the invisible hand of self-interest. And that has not done America much good.


(1) I was quite surprised to see that few articles on Antonin Scalia’s passing bothered to mention Robert Bork. Apparently, today’s corporate press employs lazy mother fuckers who have the collective memory of a fruit fly because actual journalists cost too much. Memo to the media: The method of interns using Google is insufficient. You still need knowledgeable people who know what keywords to enter.

(2) The idea of deterioration was a theme. As Lincoln ruefully wrote a friend: "Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty - to [Tsarist] Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy."

- Abraham Lincoln, Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 2:323.

(3) Shortly after the American Revolution, slave codes – which also policed the behavior of free blacks – were loosened. Tobacco’s profitability was dropping and the practice of slavery was conspicuously inconsistent with the ideals of the revolution. Many people believed that slavery was dying off. Northern states abolished slavery outright during this period, while many in the South took advantage of the loosened laws to voluntarily free their own slaves. Then, Eli Whitney invented the cotton gin, restoring slavery’s obscene profitability. Slavery’s apologists went from calling it a necessary evil to calling it a positive good authored by God. (The Enlightenment was over and America was becoming less secular as well.) Money talked and legislatures listened. Not only were slave codes re-tightened, abolitionist talk was outlawed throughout the South. Criticizing slavery in any way - as Thomas Jefferson had - could get you arrested. Racism and authoritarianism accordingly worsened.


  1. Your politics is so poisonously wrongheaded as to be evil--Hillary lost because she was (1) far too leftwing & the average white American & (2) because the left still hated her even though she was more leftwing than any Democrat for generations.

    The left needs to own up to the fact that it caused the evil of Trump pushing Hillary to the left (she was already problematically to the left of Bill & Obama but the Sanders crowd made her even more leftwing and thus more alienating to the average American)--BUT I 100% agree with what you've published in this three part series about the constitution & why originalism is stupid. You have some fantastic quotations from Jefferson & Iredell & analysis about the ratification.

  2. Ack sorry that should have read "Hillary lost because she was (1) far too leftwing FROM the average white American & (2) because the left still hated her even though she was more leftwing than any Democrat for generations."